N.B., (Mother) appealed November 22, 2010 order of Fayette Family Court which addressed issues regarding N.H. (Daughter) the minor child born of Mother’s marriage to C.H. (Father).

The parties were divorced in August, 2002. They agreed to share joint custody with Father the primary residential parent and Mother to have liberal timesharing. Shortly after the divorce, Mother moved to California, but returned to Kentucky in October, 2003. Father and Daughter resisted her efforts to resume regular visitation and Family Court ordered the entire family – Mother and Father and their new spouses – and all the children to counseling.

Mother’s timesharing resumed, but in late 2009, Daughter expressed her desire to stop spending time with Mother. Mother filed for additional counseling and the parties agreed to consult a different counselor, who recommended reconciliation counseling. Mother requested Family Court to enter a counseling order, which Father opposed. Prior to hearing on the motion for counseling, Father filed a notice of intent to relocate Daughter’s residence, but failed to file a motion for permission to relocate or to modify custody or timesharing. After a hearing on Mother’s motion, Mother and Daughter attended one unsuccessful counseling session. Father refused to force Daughter to attend another session, and Mother filed a motion to compliance with the counseling order.

The therapist testified at the hearing on Mother’s motion for compliance and cautioned against forcing the Daughter into unwanted counseling. In two in camera interviews, Daughter expressed distrust of Mother. Mother’s motion was eventually denied and counseling discontinued.

When Mother subsequently learned that Father and Daughter had moved to Texas, she asked Family Court to require return of Daughter to Kentucky and compliance with order to reconciliation counseling. Father responded that he and Daughter had dual residences in Kentucky and Texas and that his contacts with Kentucky were insufficient to trigger requirements of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). After a hearing, the Family Court denied Mother’s motion for return of child to Kentucky, denied her motion for compliance with order of joint custody and denied her request for continued reconciliation counseling. This appeal followed.

First, the Court disposed of Father’s contention that the Order was not final and appealable. Citing several cases supporting continuing jurisdiction in custody matter, the Court concluded there is ample authority to allow review of this order because it relates to Daughter’s care and custody.

Next the Court addressed Mother’s claim that the Family Court abused its discretion in denying her motion to enforce its order for reconciliation counseling. Finding that the court’s decision was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles, termination of counseling was not an abuse of discretion because evidence supported the conclusion that reconciliation counseling would be unsuccessful and possibly counterproductive.

With respect to relocation, custody, and timesharing issues, the Court noted that Family Court equated a jurisdictional question (whether there was sufficient connection with Texas to divest Fayette Court of jurisdiction) with the factual question actually before the court (whether Father and Daughter had relocated to Texas, interfering with Mother’s joint custody and timesharing rights). It was error for the Court to use the UCCJEA to resolve substantive factual questions, and no jurisdictional issue was before the court. The Family Court’s failure to enforce the custody and timesharing order opened the door for Father to engage in the forum shopping the Act seeks to avoid.

The Court of Appeals agreed with Mother’s argument that Family Court should have applied Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). Pennington defines “custody,” “visitation” and “timesharing.” In addition, Pennington clarifies that a relocation is not simply a quantitative, but a qualitative, assessment, and examines whether the facts and circumstances impact the custodial or visitation/timesharing rights of the parent who is not moving. A cross-country relocation such as this must not occur unless it is in the child’s best interest. Such a decision, absent court approval, must be made by both joint custodians. Because the joint custodians failed to agree, the trial court should have conducted a hearing and decided the issue according to the child’s best interest. Family Court failed to do so.

Finally, the Court of Appeals discusses procedural issues at great length, particularly which party bears the burden of proving what is in Daughter’s best interest; In the case at bar, Father filed no motion to modify custody or timesharing, and Mother objected to the relocation and sought enforcement of the existing order. The Family Court did not address Father’s unilateral decision-making, nor did it address the best interest question. Therefore, the case is reversed and remanded for a hearing in accordance with Pennington.

Upon remand, if Father desires a change with sole custody vested in him, he must bear the burden of persuading the Family Court that Daughter’s best interests require such a change. If Family Court agrees, Father may relocate without Mother’s approval. If Father fails to meet his burden that relocation is in child’s best interests, the original custody and timesharing order must be enforced.

After a long discussion of the burden of proof, the Court interpreted Pennington as holding that, between joint custodians, and absent the non-primary residential parent’s motion to modify timesharing, the relocating parent always bears the burden of providing relocation is in the best interests of the child.